Volume 70 — New York Supplement

Action by Charles McSorley, as administrator of James McSorley,. deceased, against the New York Central & Hudson River Railroad Company. From a judgment in favor of defendant entered on dismissal of plaintiff’s complaint at the close of his case, he appeals..

Action by William J. Logan against John W. Simpson and others, as executors of John Gy Moore, deceased; and others. From a judgment in favor of certain defendants, plaintiff and defendant Benedict appeal.

<p>1. Interpleader—-Rival Claims—Bona Fide Controversy.</p> <p>It is insufficient to sustain a bill of interpleader that rival claims had been made for the fund, without a further showing that a bona fide controversy existed between the rival claimants.</p> <p>9. Same—Complaint—Attachment—Levy on Choses in Action—Intermediate Title.</p> <p>The fund held by plaintiff in a bill of interpleader consisted of dividends on certain certificates originally issued to H. by plaintiff’s predecessors in the trust. H. transferred the stocks to one who in turn transferred them to W. Twelve years after the transfer from H., and nine years after W. was registered on the trustee’s books as owner of the certificates, M. brought suit against H., in which attachments were issued and levied on H.’s interest in such certificates. Answers were interposed, but no further steps were taken in the actions. M. claimed that the intermediate transfers from H. to W. were merely colorable. Held, that a complaint setting forth such facts, was insufficient to sustain a bill of interpleader, since the attachment gave M. no right to the certificates; an attachment lien being merely constructive as to choses in action, and inoperative through an intermediate title.</p>

<p>Shipping—Demurrage—Detention op Canal Boat—Break in Canal.</p> <p>A contract of shipment, making the consignee liable for demurrage in a certain sum per day for failure to unload a canal boat in a given time, does not authorize a recovery for the time after the boat was unloaded in which it was detained in the canal, though the vessel was not unloaded within the period allowed therefor, and the break in the canal did not occur until the expiration of such time.</p>

In the matter of the appraisal, under the act in relation to the •transfer tax, of the property of Charles P. Huntington, deceased. From the appraiser’s report certain devisees appeal.

■Appeal from justice court. Action by George E. Moody against Fred H. Becker, as president, etc. From a judgment in favor of the plaintiff, defendant appeals.

<p>Appeal from special term. ¡New York county.</p> <p>Action by Lancelot M. Berkeley, as substituted trustee under the will of Patrick Kennedy, deceased, against Andrew J. Kennedy, Mary Kennedy, and others. From an order directing a deposit in court to be paid to Mary Kennedy, plaintiff and Andrew J. Kennedy appeal* Modified.</p> <p>Michael Kennedy, who was an heir of Patrick Kennedy, died before the distribution of the estate, and the administratrix of Michael Kennedy filed a motion that a deposit in court' of $1,080 as his interest in the estate of Patrick Kennedy be paid to her.</p>

Action by Karl Mathiasen against Samuel Barkin and others to foreclose a mechanic’s lien. From a judgment of the special term of the supreme court in favor of plaintiff, defendant Barkin appeals.

<p>'Trial—Default—Failure to Secure Counsel—Setting Aside Verdict— Opening Inquest.</p> <p>Where a cause was on the day calendar for trial, and was passed because defendant’s counsel was engaged in another court, it being mutually understood that the trial should proceed on the next day, but it was subsequently learned that defendant’s counsel would be unable' to be present on that day, and, after the exercise of due diligence', defendant was unable to procure other counsel to represent it, and suffered default, defendant’s failure to be prepared for trial was excusable, and it was entitled to an order opening an inquest and setting aside a verdict had on default.</p>

<p>Conte acts—Work and Labor—Materials Furnished—Evidence—Agency.</p> <p>Where a third person was employed to superintend work to be done for defendant, and was to be paid 10 per cent, on the wholesale cost thereof, and was to use his discretion as to where he should get the work done, and he employed plaintiff, who furnished the materials and did the work, defendant was liable to plaintiff for the reasonable value of the work, and it was immaterial that the third person at the time was in plaintiff’s employ, defendant being aware of that fact.</p> <p>Patterson, J., dissenting.</p>

<p>Municipal Civil Service—Inspector of Buildings—Veteran of Civil War —Removal—Sufficient Hearing.</p> <p>Where relator, who was a veteran of the war of the Rebellion, was removed from his position as inspector of buildings after a full hearing, in which his failure to make proper entries in his journal and his making a false report were proven by his own books and admissions, such removal was proper.</p>

Petition by the town board of the town of Jamaica for the appointment of commissioners to appraise the compensation to be paid for land to be taken for the town hall. Objections of landowners to the ° proceedings.

<p>Appeal from court of special sessions of city of New York.</p> <p>Bastardy proceedings by John W. Keller, as commissioner of public charities, on the complaint of Teresa Heitzmann, against John . I*. Cleary, alleged to be the putative father of a bastard child. From an order of filiation, defendant appeals.</p> <p>The evidence showed that the child was born in New Jersey, and that the mother removed to New York thereafter.</p>

Application of Otto Stutzbach for mandamus to require Bird S.. Coler, as comptroller of the city of Hew York, to reinstate petitioner' as warrant clerk. From an order of special term denying the writ (68. H. Y. Supp. 738), petitioner appeals.

<p>Action by Dora Koppel against George E. Tilyou, as executor of Ellen Tilyou, deceased, to recover possession of lands. Judgment ■for defendant.</p>

Suit by the New York Co-operative Building & Loan Association against Teressa Brennan and others for the foreclosure of a mortgage. From a decree in favor of plaintiff, defendants appeal. Modified.

<p>Motion by the people, on the relation of one Pettit, against one Kane.</p>

Action by the Second National Bank of the City of Elmira against Charles Weston, executor, impleaded with others. From a judgment entered after direction of a verdict for defendants, plaintiff appeals.

<p>Action by George Schmidt against Robert McCaffrey. Motion to strike out answer as sham denied.</p>

<p>In the matter of the appraisal for taxation of the estate of Sarah Rockwell Fuller. Application for the appointment of an appraiser granted.</p>

<p>Trusts—Real Estate—Improvement—Authority—Expenditure — Credit— Trustee—Rights.</p> <p>A part of the land of a trust estate was condemned for a park, and the buildings on a part of the remainder had become unsafe and had been condemned by the building department, but there was no evidence that the trustee had not performed his duty in making repairs. The trustee used a part of the award received for the park in tearing down the condemned buildings and erecting modern ones. Meld, that the contention that the trustee was not entitled to credit for the money so expended, because he had no authority to use the corpus of the estate in erecting new buildings, could not be sustained, since the expenditure was proper and of advantage to the estate, in rendering unproductive property productive.</p>

<p>Action by the Dutchess Tool .Company against Louis J. Kolb.</p>

<p>Action by Kate Delaney against Charles Levy.</p>

<p>Action by William H. Fox against John B. Ireland. I. D. Warren for appellant.</p>

<p>Action by Alice M. Everson against Timothy Hefferman.</p>

<p>In the matter of the appl'cation of Samuel Evans Maires for admission to the bar.</p>

<p>Action by James Megowan and William S. Goddard against Charles G. Peterson.</p>

<p>Action by the Marcellus Electric Railroad Company against Levi Parsons and others. From an order vacating and setting aside the report and award of commissioners, the plaintiff appeals. Modified-.</p>

<p>Action by Daniel Mema, an infant, by William J. P. Mema, his guardian ad litem, against the Brooklyn Heights Railroad Company.</p>

Proceedings by the people of the state of New York, on the relation of the New York Central & Hudson River Railroad Company, against George E. Priest, J. Edgar Leayeraft, and Lester F. Steams, together constituting the state hoard of tax commissioners.

<p>Proceedings by the people of the state of New York against Patrick McKenna, impleaded with Wil-" liam Baker, on a forfeited recognizance. From an order denying a motion to vacate a judgment in favor of plaintiff, and to set aside an execution issued thereon, defendant McKenna appeals.</p>

Proceedings by the people of the state of New York, on the relation of the Western Union Telegraph Company, against George E. Priest, J. Edgar Leaycraft, and Lester F. Steams, together constituting the state board of tax commissioners.

<p>John Walsh made application for the appointment of a referee under Laws 1899, c. 700, to audit his claim for legal expenses against the city of New York. From an order denying the application, applicant appeals.</p>

<p>Action by the village of Fayetteville against the Syracuse & Suburban Railroad Company, impleaded with another.</p>

<p>Action by Carlo Wilhelm against Emil Wilhelm and another.</p>